Next “Raise the Age” battle will be making sure some felonies remain in law

As legislation to raise the juvenile age of prosecution gains steam, advocates are preparing for their next big hurdle in getting a law on the books.

North Carolina is currently the only state in the nation that prosecutes 16- and 17-year-olds as adults. House Bill 280 would raise the age of juvenile jurisdiction for those teens charged with misdemeanors and low-level, nonviolent felonies.

The bill is rooted in recommendations that were made by a 65-member independent, multidisciplinary commission that was empaneled by state Supreme Court Chief Justice Mark Martin over a year ago.

It contains proposals that are evidence-based to reduce recidivism and increase public safety and includes compromises to help satisfy stakeholders’ wants and needs.

There’s been overwhelming bipartisan support for the measure, but some legislators aren’t completely on board and are pushing to exclude all felonies, thereby raising the age of juvenile jurisdiction only for teens charged with misdemeanors.

Advocates aren’t pleased.

“The Commission recommendation and HB280 is already a compromise position, because if you’re talking about a true evidence-based proposal, you’re talking about including all felonies,” said Susanna Birdsong, Policy Counsel at the ACLU of North Carolina.

She said the commission’s recommendation to exclude violent felonies was a compromise tool to get some stakeholder groups to support raising the age.

“I think there’s this kind of overarching, we collectively think it’s a really good idea to punish kids who commit serious crimes in the adult system, but the evidence tells us that doing that really undermines public safety,” Birdsong said.

Research shows that youth who are transferred from the juvenile court system to the adult criminal system are 34 to 77 percent more likely than youth retained in the juvenile system to reoffend, according to the Campaign for Youth Justice.

Marcy Mistrett, CEO of Campaign for Youth Justice – a national initiative focused on ending prosecuting, sentencing and incarcerating youth under the age of 18 in the adult criminal system – said using charges as a punishment model for kids is setting them up for failure.

“Our stance is, all kids, all crimes should originate in juvenile court and children should get a case-by-case review by a judge before that determination [to transfer to the adult system] is made,” Mistrett said. “To start a child in the adult system, there are so many protections that are lost.”

Chief Justice Martin, who has been outspoken of passing raise the age legislation, did not return requests through the Administrative Office of the Courts (AOC) for comment about whether or not felonies should be included in the law.

He was at a press conference last week to encourage legislators to pass HB280, but remained silent when a reporter asked about the controversy over misdemeanors and felonies and did not stay after the event to take questions.

Tom Murry, chief legal counsel for governmental affairs at the AOC said he would be content with a compromise to exclude all felonies from raise the age legislation.

“There’s going to be a meeting in the middle, likely, through the public process, and I’m not sure where the line’s going to get drawn,” he said. “If we do a misdemeanor only bill and then we show that that doesn’t cause cats and dogs to live together, and we come back….”

He cut himself off and jumped to the need to take another look at some of the low-level felonies, then continued with his opinion about a compromise that would exclude those felonies.

“If we’re having a discussion about what crimes are included, we’re winning,” Murry added. “It’s not a question about whether we’re going to do it or not.”

When confronted by advocates’ concerns about leaving out the felonies, Murry said he would tell them, “let’s keep our eye on the ball.”

“I promise you those same advocates were doing a lot of high fives in 2013 and 2014 when [N.C. House] Speaker [Thom] Tillis got that passed out of the House,” he added.

In 2014, the House approved with overwhelming bipartisan support a bill that would have raised the age of juveniles charged with misdemeanor crimes, but the Senate failed to take it up.

When officials talk about violent and non-violent felonies, they are talking about two groups: A-E felonies are violent crimes like murder, rape, armed robbery and kidnapping; F-I felonies are lower level offenses that include common law robbery, breaking or entering motor vehicles, possession of cocaine and habitual impaired driving.

A little over 80 percent of 16-and 17-year-olds who were convicted in 2014 had misdemeanors; a little over 16 percent had nonviolent (F-I) felonies; and a little over 3 percent had violent (A-E) felonies, according to the North Carolina Commission on the Administration of Law and Justice.

Murry said that once they get raise the age legislation passed, lawmakers should go back and look at those F-I felonies and take steps for criminal recodification.

Mistrett said there are a lot of problems with trying to make a distinction between kids who are charged with violent felonies over and nonviolent felonies.

There aren’t currently any states, she said, that have misdemeanor-only laws when it comes to juvenile jurisdiction. Not all states include all felonies but all include at least some process for kids charged with some felonies.

She and Birdsong also pointed out that HB280 has a “safety valve,” so to speak, that would allow for any youth, ages 13 to 18, charged with any crime to be transferred to adult court at a judge’s discretion.

“Although we wanted something more robust, the ACLU supports the current version of the bill but we don’t think there needs to be any more whittling down of the felonies that are included,” Birdsong said.

Rob Thompson, a spokesman for NC Child, criticized any proposal to limit the bill to misdemeanors and said his organization believes the juvenile system is the most appropriate place for juveniles accused of all crimes.

“What the research shows is that the juvenile justice system is most effective in getting kids back on track and in preventing recidivism,” he said. “It’s better for the kids and it’s better at promoting public safety.”

Martin has also said that raising the age of juvenile prosecution is a matter of fundamental fairness and that it’s good policy.

He pointed out at last week’s press conference that over 11 counties in North Carolina currently use a misdemeanor diversion program, and that while it keeps teens out of the adult system, it also creates uneven ground when it comes to a uniform system of justice.

The Commission’s report states that unlike the juvenile system, the adult criminal system lacks the ability to implement the most targeted, juvenile-specific and effective interventions for rehabilitation within a framework of parental and community involvement to include mental health, education, and social services participation in the continuum of care.

William Lassiter, Deputy Secretary for Juvenile Justice at the Department of Public Safety, was in meetings Tuesday but relayed that he was involved with and supports the Commission’s original recommendations.

“All that research and evidence is consistent, and it’s really consistent for all crimes,” he said. “Youth of all types would stand to benefit from being in the juvenile system.”

Mistrett complimented North Carolina’s youth justice center and it’s really worked hard over the past decade to reduce the number of kids in confinement and to treat them at home in the context of their families and communities.

“That’s best practice; it’s much cheaper than incarceration and it has better outcomes,” she said. “I feel like they’ve done a lot of the up-front work already and this is just a natural next step in terms of if they’re going to walk the walk of what they know works, in terms of keeping the public safe while giving children the opportunity to learn their way and develop the skills they need to be productive.”

She added that the state is poised to pass legislation, the kinks of how it will be done and how it will be financed just have to be worked out.

About the author

Melissa Boughton, Courts and Law Reporter, joined N.C. Policy Watch in September 2016. She covers local, state and federal courts and writes about key decisions that impact the lives of North Carolinians. Before joining the project, Melissa worked the crime and courts beats at The Post and Courier in Charleston, S.C.; The Winchester Star in Winchester, Va.; and The Kerrville Daily Times in Kerrville, TX. While reporting in Charleston, she covered the Emanuel church shootings and the police killing of Walter Scott. She was part of the team that was named a finalist for the 2016 Pulitzer Prize in breaking news reporting for coverage of Scott’s death.